Media Maze Complicates Enforcement Of California Political Ad Rules

SAN DIEGO  When KPBS and inewsource investigated political advertising in U-T San Diego last year, it found the newspaper may have offered discounted rates to candidates it supported, a potential violation of campaign laws.

As San Diegans brace themselves for an onslaught of political ads in the special mayoral election to replace Bob Filner, last year's ads in U-T San Diego leading up to the November election may have exposed a flaw in California's Political Reform Act.

But California’s Fair Political Practices Commission, the state’s campaign practices watchdog, said there was no direct evidence that campaigns were quoted different amounts for exactly the same product.

“It does not appear that any campaign received a discount that is different from a discount made available to other members of the public,” wrote Gary Winuk, chief of the FPPC’s enforcement division in a memo to the commission.

The U-T case raises a larger question about whether regulators can enforce the rules of fairness in a multimedia world.

Media companies offer advertising on a range of platforms, including print, television, radio and web. They can “bundle” rates, which means prices are packaged and often depend on how many ads a candidates buys.

The U-T’s vice president of sales told the FPPC that “they have so much advertising product available that very infrequently will any two purchases look alike...”

Experts in campaign finance agree that today’s media world poses challenges to the goals of openness and balance, but they don’t see a common solution.

“The problem is news advertising is not just a commodity that has one unit price all the time,” Scheer said. “It is often the practice for newspapers to have an advertising price sheet, but all that shows is one possible set of options if you’re buying just one ad, at one time on the most expensive possible page. If you’re going to be buying more, there will be all sorts of discounts. I think the law in California may not really be enforceable in this context.”

The issue has immediate relevance in San Diego because the city has been forced to conduct a special election for mayor in 2013 by Mayor Bob Filner’s resignation in the wake of sexual harassment allegations. Eleven candidates are on the ballot, and campaign expenditure reports show money already is being spent on advertising in the media.

In its investigation of the elections last fall, inewsource and KPBS audited campaign ads in the U-T from Labor Day until election day. They documented every political ad, its date, sponsor and size and analyzed the results.

The audit showed the newspaper may have offered bargain rates to a campaign opposing then-Democratic mayoral candidate Filner. It also showed possible discounts to Republican Congressman Brian Bilbray.

Bilbray and Filner’s Republican opponent Carl DeMaio received the U-T’s editorial endorsements. Filner and Peters, however, won their races.

inewsource found no reports of in-kind contributions from the U-T to the Bilbray or anti-Filner campaigns on disclosure forms required by the state.

Campaign representatives for Filner and Peters told KPBS they were quoted rates of $8,000 per full-page ad, significantly higher than what financial disclosure statements show DeMaio and Bilbray paid for their ads.

The inewsource analysis showed that San Diegans for Reform in Opposition to Bob Filner paid $25,000 for 16 full-page ads. Former Congressman Bilbray paid $25,000 for 27 full-page ads.

The FPPC said there was “insufficient evidence” that the bundled rates offered to candidates differed from those offered to retailers.

Dan Schnur, a former chairman of the FPPC, sees problems with the 39-year-old law that regulates campaign practices.

“The most important issue here is the question of providing an even playing field for all candidates for an elective office,” he said. “There’s no question that the cost difference in the ad rates is suspicious,” Schnur said. “But I have a lot of respect for the FPPC and their enforcement unit. It appears that they have decided that while they may or may not be convinced by the U-T’s explanation, the paper did offer a plausible explanation.”

The paper’s lawyers told the FPPC that the U-T had offered various package rates to all campaigns depending on the type of media — online, television or print — that campaigns requested.

But if candidates and issue campaigns are charged different rates, depending on the platform or combination of platforms they choose, then how can the FPPC ferret out genuine violations?

“This is such a gray area that it seems to me that the FPPC should look into a regulation that clarifies these types of questions,” Schnur said. “The Political Reform Act was passed in 1974. Since then, there have been extraordinary advances in politics, in communications and in technology. “

The act has been amended hundreds of times since 1974 through ballot initiative or the legislative process, according to the FPPC’s Winuk.

“The FPPC is continually looking at updating and improving the Political Reform Act,” Winuk said. “At present, there’s nothing to release publicly about changes in this particular area.”

Internally, the case generated discussion about whether the FPPC should provide the U-T more clarity.

KPBS submitted a Public Records Act request for documentation of the FPPC’s inquiry, and found that during the review of U-T ad rates, Winuk asked whether the paper should be given more direction on the matter.

“Rather than close for lack of evidence which might draw some criticism in the local newspapers, perhaps closing with an advisory letter to UT San Diego conveying some of the advice given to other newspapers, with a suggestion that they contact the Legal Division concerning their rate structure for multiple publications and bundled arrangements as they described to us,” Winuk wrote. “Thoughts?”

In a recent interview, Winuk said the advice letter was never sent.

Scheer, of the First Amendment Coalition, said any attempt to change the current system could be seen as over-restrictive and infringe on the First Amendment rights of the newspaper, the ad purchaser and the audience.

But Schnur believes there’s a compelling public interest to at least try.

“Now the U-T representatives argued that it was not a political decision on their part but a commercial one. When you’re talking about candidates rather than toothpaste or breakfast cereals, clarifying the act to address just this type of matter is probably a good idea," he said.